Makhasa v Minister of Law and Order, Lebowa Government

• Jurisdiction: South Africa
• Judgment Date: 27 May 1988
• Citation: 1988 (3) SA 701 (A)

Makhasa v Minister of Law and Order, Lebowa Government
1988 (3) SA 701 (A)

1988 (3) SA p701

Citation	1988 (3) SA 701 (A)
Court	Appellate Division
Judge	Rabie ACJ, Jansen JA, Corbett JA, Van Heerden JA and Grosskopf JA
Heard	May 16, 1988
Judgment	May 27, 1988

Flynote: Sleutelwoorde

B Statute — Validity of — Lebowa Indemnity Act 3 of 1986 — Ultra vires First Schedule to National States Constitution Act 21 of 1971 — Power to pass Act not incidental to any of the matters entrusted to Lebowa C Legislative Council by First Schedule — Lebowa Indemnity Act accordingly invalid — Question whether such Act also invalid by reason of its effect of ousting jurisdiction of Court, its extra-territorial operation or its inconsistency with ss 4 and 23 of National States Constitution Act raised but not decided. D

Headnote: Kopnota

As a power to pass the Lebowa Indemnity Act 3 of 1986 was not incidental to any of the matters entrusted to the Lebowa Legislative Council by the First Schedule to the National States Constitution Act 21 of 1971, the former Act is ultra vires and invalid.

Middelburg Municipality v Gertzen 1914 AD 544 and the cases following it applied.

The question whether the Lebowa Indemnity Act was also invalid on the ground that its effect was allegedly to oust the jurisdiction of the Court and that the power to achieve such a result should allegedly be E granted in clear terms, raised but not decided.

The question whether the Act is also invalid by reason of its extra-territorial operation or its inconsistency with ss 4 and 23 of the National States Constitution Act 21 of 1971 likewise raised but not decided.

The decision in the Transvaal Provincial Division in Makhasa v Minister of Law and Order, Lebowa Government reversed. F

Case Information

Appeal from a decision in the Transvaal Provincial Division (Curlewis J). The facts appear from the judgment of Grosskopf JA.

W H Trengove SC for the appellant (the heads of argument having been drawn by R K R Zeiss SC and E D Moseneke): The purpose of the Lebowa G Indemnity Act 3 of 1986 is stated in its long title. The long title of the Lebowa Indemnity Act is somewhat similar to the long title of the Public Safety Act 3 of 1953 ('the Public Safety Act'). Passages of s 1(1) of the Lebowa Indemnity Act are somewhat similar to the long title and to s 2(1)(a) and (b) of the Public Safety Act; are somewhat similar to the wording of ss 2(1), 3(1), 6(1)(j) and in particular to s 11(1) of H Proc R121 of 1985, promulgated in Government Gazette 9877 dated 21 July 1985; are somewhat similar to the wording of ss 2(1), 3(1) and in particular s 16(1) of Proc R109 of 1986 promulgated in Government Gazette 10280 dated 12 June 1986. The Lebowa Indemnity Act as a whole is very similar to the provisions of the Indemnity Act 61 of 1961 and the Indemnity Act 13 of 1977 (it is a matter for judicial notice that the I 1961 Act coincides with the Langa and Sharpville incidents and that the 1977 Act coincides with the Soweto riots). Any law of the legislative assembly can be tested in any Superior Court having jurisdiction. See s 19(1) of the National States Constitution Act 21 of 1971 (hereinafter referred to as 'the National States Constitution Act'). Similarly, J provincial ordinances could be tested in

1988 (3) SA p702

A terms of s 98(3)(b) of the South Africa Act 1909 and s 19(3) of the Supreme Court Act 59 of 1959 read with s 94(2) of Act 32 of 1961. Lebowa has been constituted a self-governing territory in terms of s 26 of the National States Constitution Act (Proc R222 of 1972). In terms of s 30(1) of the National States Constitution Act, the legislative assembly of Lebowa has been given the powers set out therein. Schedule 1 to the B Act is also relevant to the present enquiry, particularly items 21, 21A, 21B, 22. Section 4 of the National States Constitution Act specifically excludes certain matters from the powers of legislation of the Lebowa Legislative Assembly. In the main it was contended on plaintiff's behalf before the Court a quo that the Indemnity Act is designed to deal with C situations of emergency or internal unrest or the maintenance of public order when the usual laws are insufficient (cf s 2(1)(c) of the Public Safety Act); that the power to pass such an Act as the Indemnity Act is not expressly granted and that no amount of 'liberal' or 'benevolent' interpretation can discover such an implied power. The dicta by Innes D CJ, quoted in the judgment of the Court a quo, appear in Middelburg Municipality v Gertzen 1914 AD 544 at 552 - 3. The ratio decidendi of the Court a quo appears to be as follows: (1) Lebowa is a partly self-governing territory with an Assembly which exercises original powers of legislation. (2) This entails the power to enact provisions 'to regulate the bringing of actions and their prevention by the lapse of time if necessary' such as s 96(1) of Ord 22 of 1957 and s 32 of the E Police Act 7 of 1958. (3) As the Lebowa Police are expressly required as part of their duties to preserve the internal security of Lebowa (in context, a reference to s 5(a) of the South African Police Act 7 of 1958 read together with s 2 of the Lebowa Police Act 6 of 1985), they are empowered to deal with unrest and disorder in an 'emergency situation' F (in context, with a situation where 'the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or to maintain public order' as envisaged by s 2(c) of the Public Safety Act) albeit only by the use of 'conventional methods'. In the circumstances the main thrust of the argument presented to this Court will be directed against the findings summarised in paras (2) and (3) G supra. It appears to be necessary for purposes of this argument to determine the constitutional status and extent of powers of the legislative assembly which passed the Lebowa Indemnity Act. It has been suggested by textbook writers and in fact by this Court itself that the powers of the legislative assembly are similar to and as a matter of H fact in certain material respects superior to the powers of the old Provincial Councils. See Baxter Administrative Law at 133; Joubert (ed) Law of South Africa vol 1 para 52 (and notes thereto) at 29 - 30; Government of the Republic of South Africa v Government of KwaZulu 1983 (1) SA 164 (A) at 205D - H (per Rabie CJ); Du Plessis The Interpretation of Statutes at 6 and 12; Basson and Viljoen Suid-Afrikaanse Staatsreg at I 293. The material differences between the powers of the Lebowa Legislative Assembly and the former Provincial ouncils appear to be the following: The Lebowa legislative assembly can within the scope entrusted to it in terms of Schedule 1 amend and repeal South African Acts of Parliament (s 30(1)(b) of the National States Constitution Act). On the other hand according to the principle of repugnancy the former Provincial Councils could not amend or repeal any South African Acts of J Parliament.

1988 (3) SA p703

A Sections 84 and 85 of Act 32 of 1961; s 86 of the South African Act 1909. Acts of the South African Parliament promulgated after self-government was granted relating to matters referred to in Schedule 1 do not apply in a self-governing territory. In order to make them applicable, they must be re-enacted. S v Heavyside 1976 (1) SA 584 (A) at 589; S v Sambe 1981 (3) SA 757 (T) at 759H. On the other hand, Acts B of Parliament relating to matters entrusted to the former Provincial Councils automatically apply in the provinces (s 85 of Act 32 of 1961). Whereas this Court has held that the relationship of the former Provincial Councils vis-à-vis the South African Parliament was analogous to the relationship of principal and agent (see Middelburg Municipality v Gertzen 1914 AD 544 at 567) this Court has decided with regard to the C self-governing territory of KwaZulu that a self-governing territory is not to be regarded 'as a mere instrument, or representative, of the State' (per Rabie CJ in Government of the Republic of South Africa v Government of KwaZulu 1983 (1) SA 164 (A) at 206D). It follows that in regard to matters referred to in Schedule 1 the Lebowa Legislative D Assembly has 'exclusive power to repeal or amend the provisions' (our italics) (S v Heavyside (supra at 589G)) and act independently of the State (KwaZulu case supra at 206B - C). See also Du Plessis (op cit at 12); Baxter (op cit at 113). In terms of s 37A of the National States Constitution Act the State President has the power to amend Schedule 1 by proclamation in the Gazette and for the purpose of giving effect to E any such other provision of the Act. When testing whether the former Provincial Councils acted ultra vires, the Courts have in the past applied the following principles: (1) A Provincial Council may only legislate within the powers expressly or impliedly conferred upon it. Law of South Africa vol 21 para 275 at 229. (2) Those powers must be liberally and not narrowly construed. Law of South Africa vol 21 para F 275 at 229. (3) An enactment of the legislative assembly may not be set aside by a Court on the ground that it is unreasonable or on the ground that it is vague and uncertain. Joyce & McGregor Ltd v Cape Provincial Administration 1946 AD 658 at 669. (4) The relevant powers of legislative assembly are original powers. Brown v Cape Divisional Council and Others 1979 (1) SA 589 (A) at 602D. (5) A Court will not G lightly declare that the provisions of an enactment of the legislative assembly are invalid as going beyond the legislative scope assigned to it by Schedule 1 of the National States Constitution Act. (This is still looking at it from the position of Provincial Councils.) Brown v Cape Divisional Council and Others (supra); S v Le Grange 1962 (3) SA 498 (A) H at 505A - B. Reverting now to the powers of a...